EXHIBIT 10.3.3
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT is entered into as of February 28, 2007 by
and between Hi-Shear Technology Corporation, a Delaware corporation (hereinafter
referred to as the "Company"), and Xxxxxx X. Xxxxxx (hereinafter referred to as
"Executive") under the following terms and conditions:
RECITALS:
WHEREAS, the Company and Executive are parties to that certain
Employment Agreement dated February 28, 2005, the term of which expired as of
February 28, 2007;
WHEREAS, the Company and Executive desire to set forth the terms and
conditions on which (i) the Company shall continue to employ Executive, (ii)
Executive shall continue to render services to the Company, and (iii) the
Company shall compensate Executive for such services; and
WHEREAS, in connection with the continued employment of Executive by
the Company, the Company desires to restrict Executive's rights to compete with
the business of the Company.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements hereinafter set forth, the parties hereto agree as follows:
1. EMPLOYMENT.
The Company hereby employs Executive and Executive hereby
accepts employment with the Company upon the terms and conditions hereinafter
set forth.
2. TERM.
2.1 The term of this Agreement (the "Term") shall be for a
period commencing on the Effective Date (as defined in Section 2.3 below) of
this Agreement and shall continue through February 28, 2009, unless sooner
terminated as provided in Paragraph 6. This two-year period, as the same may be
extended hereafter by agreement of the parties or terminated pursuant hereto, is
hereinafter referred to as the "Term".
2.2 For purposes of extending the term of the relationship
between the Company and Executive, the parties agree to enter into good faith
negotiations within sixty (60) days prior to the end of the Term. In the event
that the parties are unable to reach an agreement by the end of the Term, this
Agreement shall be automatically terminated on February 28, 2009.
2.3 The effective date of this Agreement shall be February 28,
2007 (the "Effective Date").
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3. COMPENSATION.
3.1 For all services rendered by Executive under this
Agreement, the Company shall pay or cause one or more of its subsidiaries to pay
Executive or his estate, if deceased, a salary of $484,000 per year. Salary will
be increased to $532,000 per year at February 28, 2008. The Company shall pay
such compensation to Executive or his estate semi-monthly in accordance with its
standard practice for payment of compensation.
3.2 As additional compensation, Executive shall be eligible to
participate in the executive bonus pool program established by the Board and
administered by the Compensation Committee.
3.3 All compensation shall be subject to customary withholding
tax and other employment taxes as are required with respect to compensation paid
by a corporation to an employee.
4. DUTIES AND RESPONSIBILITIES.
4.1 Executive shall, during the Term of this Agreement, devote
his full attention and expend his best efforts, energies, and skills, on a
full-time basis, to the business of the Company and any corporation controlled
by the Company (each, a "Subsidiary"). For purposes of this Agreement, the term
the "Company" shall mean the Company and all Subsidiaries. The Company agrees
that the devotion of reasonable amounts of time to business activities separate
from and outside the scope of the business of the Company will not violate the
terms of this Agreement, on the conditions that (i) such activities are not
corporate opportunities of the Company; and (ii) such activities do not
interfere with the performance of Executive's duties hereunder.
4.2 During the Term of this Agreement, Executive shall serve
as the President, Chief Executive Officer and Chairman or in such other capacity
as determined by the Board of Directors or its Executive Committee, if any. In
the performance of all of his responsibilities hereunder, Executive shall be
subject to all of the Company's policies, rules, and regulations applicable to
its employees of comparable status and shall report directly to, and shall be
subject to, the direction and control of the Board of Directors of the Company
and shall perform such duties as shall be assigned to him by the Board of
Directors or its Executive Committee. In performing such duties, Executive will
be subject to and abide by, and will use his best efforts to cause other
employees of the Company to be subject to and abide by, all policies and
procedures developed by the Board of Directors or its Executive Committee.
4.3 Without first obtaining the written permission of the
Board of Directors of the Company, Executive will not authorize or permit the
Company to engage the services of, or engage in any business activity with, or
provide any financial or other benefit to, any affiliate of Executive. The
phrase "affiliate of Executive" as used in this Section shall mean and include
Executive's family by blood or marriage (including, without limitation, parents,
spouse, siblings, children and in-laws), and any business or business entity
which is directly or indirectly owned or controlled by Executive or any member
of the Executive's family or in which Executive or any member of the Executive's
family has any direct or indirect financial interest whatsoever.
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4.4 To induce the Company to enter into this Agreement, the
Executive represents and warrants to the Company that (a) the Executive is not a
party or subject to any employment agreement or arrangement with any other
person, firm, company, corporation or other business entity, (b) the Executive
is subject to no restraint, limitation or restriction by virtue of any agreement
or arrangement, or by virtue of any law or rule of law or otherwise which would
impair the Executive's right or ability (i) to enter the employ of the Company,
or (ii) to perform fully his duties and obligations pursuant to this Agreement,
and (c) to the best of Executive's knowledge no material litigation is pending
or threatened against any business or business entity owned or controlled or
formerly owned or controlled by Executive.
5. RESTRICTIVE COVENANTS.
5.1 Executive acknowledges that (i) he has a major
responsibility for the operation, administration, development and growth of the
Company's business, (ii) the Company's business is or may become national or
international in scope, (iii) his work for the Company has brought him and will
continue to bring him into close contact with confidential information of the
Company and its customers, and (iv) the agreements and covenants contained in
this Section 5.1 are essential to protect the business interest of the Company
and that the Company will not enter into this Agreement but for such agreements
and covenants. Accordingly, the Executive covenants and agrees as follows:
5.l(a) Except as otherwise provided for in this
Agreement, during the Term of this Agreement and, if this Agreement is
terminated for any reason during the Term, for two (2) years following such date
of termination (the "Termination Period"), the Executive shall not, directly or
indirectly, compete with respect to any services or products of the Company
which are either offered or are being developed by the Company as of the date of
termination; or, without limiting the generality of the foregoing, be or become,
or agree to be or become, interested in or associated with, in any capacity
(whether as a partner, shareholder, owner, officer, director, Executive,
principal, agent, creditor, trustee, consultant, co-venturer or otherwise) any
individual, corporation, firm, association, partnership, joint venture or other
business entity, which competes with respect to any services or products of the
Company which are either offered or are being developed by the Company as of the
data of termination; provided, however, that the Executive may own, solely as an
investment, not more than one percent (1%) of any class of securities of any
publicly held corporation in competition with the Company whose securities are
traded on any national securities exchange in the United States of America, and
may retain his ownership interest in those entities referred to in Section 4.1
above.
5.1(b) During the term of this Agreement and, if
applicable, during the Termination Period, the Executive shall not, directly or
indirectly, (i) induce or attempt to influence any executive of the Company to
leave its employ, (ii) aid or agree to aid any competitor, customer or supplier
of the Company in any attempt to hire any person who shall have been employed by
the Company within the one (1) year period preceding such requested aid, or
(iii) induce or attempt to influence any person or business entity who was a
customer or supplier of the Company during any portion of said period to
transact business with a competitor of the Company in Company's business.
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5.1(c) During the Term of this Agreement, the
Termination Period, if applicable, and thereafter, the Executive shall not
disclose to anyone any information about the affairs of the Company, including,
without limitation, trade secrets, trade "know-how", inventions, customer lists,
business plans, operational methods, pricing policies, marketing plans, sales
plans, identity of suppliers or customers, sales, profits or other financial
information, which is confidential to the Company or is not generally known in
the relevant trade, nor shall the Executive make use of any such information for
his own benefit.
5.2 If the Executive breaches, or threatens to commit a breach
of Section 5.1 (the "Restrictive Covenants"), the Company shall have the
following rights and remedies, each of which shall be enforceable, and each of
which is in addition to, and not in lieu of, any other rights and remedies
available to the Company at law or in equity.
5.2(a) The Executive shall account for and pay over
to the Company all compensation, profits, and other benefits, after taxes, which
inure to Executive's benefit which are derived or received by the Executive or
any person or business entity controlled by the Executive resulting from any
action or transactions constituting a breach of any of the Restrictive
Covenants.
5.2(b) Notwithstanding the provisions of subsection
5.2(a) above, the Executive acknowledges and agrees that in the event of a
violation or threatened violation of any of the provisions of Section 5.1, the
Company shall have no adequate remedy at law and shall therefore be entitled to
enforce each such provision by temporary or permanent injunctive or mandatory
relief obtained in any court of competent jurisdiction without the necessity of
proving damages, posting any bond or other security, and without prejudice to
any other rights and remedies which may be available at law or in equity.
5.3 If any of the Restrictive Covenants, or any part thereof,
is held to be invalid or unenforceable, the same shall not affect the remainder
of the covenant or covenants, which shall be given full effect, without regard
to the invalid or unenforceable portions. Without limiting the generality of the
foregoing, if any of the Restrictive Covenants, or any part thereof, is held to
be unenforceable because of the duration of such provision or the area covered
thereby, the parties hereto agree that the court making such termination shall
have the power to reduce the duration and/or area of such provision and, in its
reduced form, such provision shall then be enforceable.
5.4 The parties hereto intend to and hereby confer
jurisdiction to enforce the Restrictive Covenants upon the courts of any
jurisdiction within the geographical scope of such Restrictive Covenants. In the
event that the courts of any one or more of such jurisdictions shall hold such
Restrictive Covenants wholly unenforceable by reason of the breadth of such
scope or otherwise, it is the intention of the parties hereto that such
determination not bar or in any way affect the Company's right to the relief
provided above in the courts of any other jurisdictions within the geographical
scope of such Restrictive Covenants, as to breaches of such covenants in such
other respective jurisdictions, the above covenants as they relate to each
jurisdiction being, for this purpose, severable into diverse and independent
covenants.
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6. TERMINATION.
6.1 The Company may terminate the Executive's employment under
this Agreement at any time for Cause. "Cause" shall exist for such termination
if Executive (i) is adjudicated guilty of illegal activities of consequence by a
court of competent jurisdiction, (ii) commits any act of fraud or intentional
misrepresentation, (iii) has, in the reasonable judgment of the Company's Board
of Directors, engaged in serious misconduct, which conduct has, or would if
generally known, materially adversely affect the good will or reputation of the
Company and which conduct the Executive has not cured or altered to the
satisfaction of the Board of Directors within ten (10) days following notice by
the Board of Directors to the Executive regarding such conduct, or (iv) has made
any material misrepresentation to the Company under Sections 4 and 5 hereof.
6.2 If the Company terminates the Executive's employment under
this Agreement pursuant to the provisions of Section 6.1 hereof, the Executive
shall not be entitled to receive any compensation following the date of such
termination.
6.3 The Company may terminate this Agreement without notice if
the Executive is unable due to mental or physical illness or injury to perform
Executive's duties in a normal and regular manner for a period of six
consecutive months or death. The termination shall be effective as of the end of
the calendar month in which the disability period ends or death.
Upon termination because of disability or death, the Executive
or his estate if deceased shall be entitled to receive compensation for 36
months from the date of such termination (such payments to be diminished,
however, by the extent to which the Executive receives compensation during such
36 month period from any disability insurance) in an amount equal to the monthly
compensation paid Executive for the month prior to such termination.
6.4 If Executive's employment with the Company is terminated
for any reason other than: (i) the death or permanent disability of the
Executive, (ii) pursuant to the provisions of Section 6.1 above, or (iii) the
Executive's voluntary termination, the Executive shall continue to receive
compensation for 48 months from the date of such termination (provided, however,
that (1) payments by the Company shall be diminished by the extent to which the
Executive receives compensation during such 48-month period from a third party
employer, and (2) total compensation shall not in any event exceed four times
the entire compensation received by Executive during the one-year period
immediately preceding the date of such termination, in monthly amounts equal to
the monthly compensation paid Executive for the month prior to such termination.
7. EXPENSES.
7.1 Executive shall be entitled to reimbursement of all
reasonable expenses actually incurred in the course of his employment. The
Executive may use First Class travel accommodations for business travel.
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Executive shall submit to the Company, for those expenses not already documented
by the company credit card statements, a standardized company expense report.
7.2 The Company will provide the following perquisites at
Company expense. The perquisites include, from time to time, personal use of the
Company credit card, personal use of the Company vehicles, membership in social
clubs, casual personal travel, physical exams, tax preparation and financial
planning services. The value of the benefits for the executive shall not exceed
the greater of $50,000 per year or 10% of total annual compensation, including
salary and bonus.
7.3 In recognition of the requirements for business travel,
the Company shall provide Executive with the use of a Cadillac Seville or other
automobile of equivalent cost of Executive's choice. The automobile may be
purchased by the Executive at the end of the lease term or renewal of a new
lease for $1.00.
8. THE COMPANY'S AUTHORITY
Executive agrees to observe and comply with the reasonable
rules and regulations of the Company as adopted by the Company's Board of
Directors or Executive Committee either orally or in writing, with respect to
the performance of his duties and the carrying out and performance of the
orders, directions, and policies of the Board of Directors as stated by the
Board of Directors to the Executive from time to time, either orally or in
writing.
9. PAID VACATION; SICK LEAVE; INSURANCE.
9.1 Executive shall be entitled to paid vacation each year
equal to twelve (12) weeks per year. Periods when executive is in contact and
responsible shall not be considered vacation periods.
9.2 The Executive shall be entitled to reasonable periods of
paid sick leave during the Term of this Agreement in accordance with the
Company's policy regarding such sick leave.
9.3 The Company shall provide Executive, at the Company's full
expense, participation in group medical, dental, and life insurance plans of the
Company as may be provided by the Company from time to time, subject to and to
the extent that, the Executive is eligible under such benefit plans in
accordance with their respective terms. Coverage under the Company's group
medical, dental and life insurance plans at the Company's full expense will be
extended to Executive for five (5) years after the termination of this Agreement
except in the case of termination under Section 6. 1 above.
10. MISCELLANEOUS.
10.1 The Company may, from time to time, apply for and take
out, in its own name and at its own expense, life, health, accident, disability
or other insurance upon the Executive in any sum or sums that it may deem
necessary to protect its interests, and the Executive agrees to aid and
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cooperate in all reasonable respects with the Company in procuring any and all
such insurance, including without limitation, submitting to the usual and
customary medical examinations, and by filling out, executing and delivering
such applications and other instruments in writing as may be reasonably required
by an insurance company or companies to which an application or applications for
such insurance may be made by or for the Company. In order to induce the Company
to enter this Agreement, the Executive represents and warrants to the Company
that to the best of his knowledge the Executive is insurable at standard
(non-rated) premiums.
10.2 This Agreement is a personal contract, and the rights and
interests of the Executive hereunder may not be sold, transferred, assigned,
pledged or hypothecated except as otherwise expressly permitted by the
provisions of this Agreement. The Executive shall not under any circumstances
have any option or right to require payment hereunder otherwise than in
accordance with the terms hereof. Except as otherwise expressly provided herein,
the Executive shall not have any power of anticipation, alienation or assignment
of payments contemplated hereunder, and all rights and benefits of the Executive
shall be for the sole personal benefit of the Executive, and no other person
shall acquire any right, title or interest hereunder by reason of any sale,
assignment, transfer, claim or judgment or bankruptcy proceedings against the
Executive; provided, however, that in the event of the Executive's death, the
Executive's estate, legal representative or beneficiaries (as the case may be)
shall have the right to receive all of the benefit that accrued to the Executive
pursuant to, and in accordance with, the terms of this Agreement.
10.3 The Company shall have the right to assign this Agreement
to any successor of substantially all of its business or assets, and any such
successor shall be bound by all of the provisions hereof.
11. NOTICES.
All notices, requests, demands and other communications
provided for by this Agreement shall be in writing and (unless otherwise
specifically provided herein) shall be deemed to have been given at the time
when mailed in any general or branch United States Post Office, enclosed in a
registered or certified postpaid envelope, addressed to the parties stated below
or to such changed address as such party may have fixed by notice:
TO THE COMPANY: Hi-Shear Technology Corporation
00000 Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000-0000
Attn: President/CEO
EXECUTIVE: Xxxxxx X. Xxxxxx
Hi-Shear Technology Corporation
00000 Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000-0000
COPY TO: Xxxxxx X. Xxxxxx
00000 Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000-0000
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12. ENTIRE AGREEMENT.
This Agreement supersedes any and all agreements, whether oral
or written, between the parties hereto, with respect to the employment of
Executive by the Company and contains all of the covenants and agreements
between the parties with respect to the rendering of such services in any manner
whatsoever. Each party to this Agreement acknowledges that no representations,
inducements, promises or agreements, orally or otherwise, have been made by any
party, or anyone acting on behalf of any party, which are not embodied herein,
and that no other agreement, statement or promise with respect to such
employment not contained in this Agreement shall be valid or binding. Any
modification of this Agreement will be effective only if it is in writing and
signed by the parties hereto.
13. PARTIAL INVALIDITY.
If any provision in this Agreement is held by a court of
competent jurisdiction to be invalid, void, or unenforceable, the remaining
provisions shall nevertheless continue in full force and effect without being
impaired or invalidated in any way.
14. ATTORNEYS' FEES.
Should any litigation or arbitration be commenced between the
parties hereto or their personal representatives concerning any provision of
this Agreement or the rights and duties of any person in relation thereto, the
party prevailing in such litigation or arbitration shall be entitled, in
addition to such other relief as may be granted, to a reasonable sum as and for
its or their attorneys' fees in such litigation or arbitration which shall be
determined by the court or arbitration board.
15. ARBITRATION.
Any matter of disagreement arising under this Agreement shall
be submitted for decision to a panel of three neutral arbitrators with expertise
in the subject matter to be arbitrated. One arbitrator will be selected by each
party and the two arbitrators so selected shall select the third arbitrator. The
arbitration shall be conducted in accordance with the rules of the American
Arbitration Association. The decision and award rendered by the arbitrators
shall be final and binding. Judgment upon the award may be entered in any court
having jurisdiction thereof. Any arbitration shall be held in Los Angeles,
California, or such other place which may be mutually agreed upon by the
parities.
16. GOVERNING LAW.
This Agreement will be governed by and construed in accordance
with the laws of the State of California.
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17. BINDING NATURE.
This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective representatives, heirs, successors
and assigns.
18. WAIVER.
No waiver of any of the provisions of this Agreement shall be
deemed, or shall constitute a waiver of any other provision, whether or not
similar, nor shall any waiver constitute a continuing waiver. No waiver shall be
binding unless executed in writing by the party making the waiver.
19. CORPORATE APPROVALS.
The Company represents and warrants that the execution of this
Agreement by its corporate officer named below has been duly authorized by the
Board of Directors of the Company, is not in conflict with any Bylaw or other
agreement and will be a binding obligation of the Company, enforceable in
accordance with its terms.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date above written.
THE COMPANY: HI-SHEAR TECHNOLOGY CORPORATION
By: /S/ XXXXXX X. XXXXXX
--------------------------------
Xxxxxx X. Xxxxxx
/S/ XXXX XXXXX
--------------------------------
Xxxx Xxxxx
EXECUTIVE: /S/ XXXXXX X. XXXXXX
--------------------------------
Xxxxxx X. Xxxxxx
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